Docket No. 109886.
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ABRAHAM GARCIA, Appellee.
Opinion filed January 21, 2011.
CHIEF JUSTICE KILBRIDE delivered the judgment of the court,
Justices Freeman, Thomas, Garman, Karmeier, Burke, and Theis
concurred in the judgment and opinion.
The issue in this appeal is whether a defendant’s wrongful delay
of criminal proceedings by violating bond and becoming a fugitive
from justice tolls the 10-year limitation on prior convictions used to
impose an extended-term sentence under section 5–5–3.2(b)(1) of the
Unified Code of Corrections (730 ILCS 5/5–5–3.2(b)(1) (West
1998)). The appellate court answered that question negatively, relying
on the absence of statutory language specifically tolling the 10-year
limit based on a defendant’s wrongful delay. 396 Ill. App. 3d 792,
799. For the reasons that follow, we reverse the part of the appellate
court’s judgment construing the statute.
In November 1999, the State charged defendant, Abraham Garcia,
with attempted first degree murder and aggravated battery, alleging
that defendant beat the victim following a minor traffic incident on
August 31, 1999.
Pertinent to this appeal, the circuit court of Cook County released
defendant on bond, but later issued a bond forfeiture warrant when
defendant failed to appear. The warrant was quashed when defendant
appeared at a subsequent hearing. Defendant again failed to appear at
another hearing. Thus, in November 2000, the court issued a second
bond forfeiture warrant. For the next six years, defendant remained a
fugitive from justice. Defendant was not rearrested until November
In 2008, defendant was tried in a bench trial. The State presented
evidence that the victim, Roberto Rios, and his wife were driving on
a public road when they encountered defendant’s vehicle stopped on
the road, blocking Rios’ passage. After waiting briefly, Rios honked
his car horn at defendant’s vehicle. Defendant exited his vehicle and
approached Rios’ car. Defendant argued with Rios and unsuccessfully
tried to hit Rios through an open car window. Rios and his wife then
drove to a nearby restaurant.
Shortly afterwards, defendant and another man entered the
restaurant and attacked Rios. Defendant restrained Rios while the
other man repeatedly hit Rios with a metal pipe. Rios eventually fell
to the ground. While Rios was on the ground, defendant hit him in the
head with a glass pitcher, breaking the pitcher. Defendant then cut
Rios’ face with pieces of broken glass. During the attack, Rios
sustained a broken arm and serious permanent injuries to his face.
Ultimately, the trial court convicted defendant of three counts of
At the sentencing hearing, the parties agreed that defendant was
eligible for an extended-term sentence based on his 1993 conviction
for possession of a stolen motor vehicle. The trial court sentenced
defendant to three extended 90-month prison terms, to be served
Defendant filed a motion to reconsider his sentence, arguing that
he was not eligible for an extended-term sentence under section
5–5–3.2(b)(1) of the Code because that section authorized an
extended-term sentence based only on prior convictions within the
previous 10 years, but his 1993 conviction for possession of a stolen
motor vehicle occurred more than 10 years before his 2008 conviction
in this case. The trial court denied defendant’s motion to reconsider,
finding that the statutory 10-year limit was tolled during the six years
when defendant willfully violated his bail bond.
On appeal, the appellate court agreed with defendant’s challenge
to his extended-term sentence. The court recognized that section
5–5–3.2(b)(1) was intended to impose harsher sentences on offenders
who had demonstrated their resistance to correction through repeated
convictions but also noted, as a penal statute, it must be strictly
construed in favor of the defendant. Observing that the statute
contained no express tolling language, the court declined to toll the
10-year time limit when a defendant wrongfully delayed the criminal
proceedings. 396 Ill. App. 3d at 798-99.
Accordingly, the appellate court determined that defendant was
not eligible for an extended-term sentence when his 1993 conviction
occurred more than 10 years before his 2008 conviction.
Consequently, the court vacated as void the extended-term portion of
his sentence, consisting of 2½ years. The court also remanded the
cause to the trial court to vacate one of defendant’s aggravated
battery convictions under the one-act, one-crime doctrine. 396 Ill.
App. 3d at 795-97.
We allowed the State’s petition for leave to appeal. Ill. S. Ct. R.
315 (eff. Feb. 26, 2010). The State challenges only the part of the
appellate court’s judgment on the extended-term sentence issue, and
we thus limit our consideration in this case to that issue.
The State argues the appellate court erred when it held that
defendant’s wrongful delay of criminal proceedings by becoming a
fugitive from justice did not toll the 10-year limit on prior convictions
used to impose an extended-term sentence under section
5–5–3.2(b)(1) of the Code. Acknowledging that the statute does not
specifically toll the 10-year time limit when a defendant wrongfully
delays proceedings, the State nonetheless contends that the appellate
court’s construction of the statute was overly strict and directly
conflicts with both legislative intent and well-established public policy
prohibiting a criminal defendant from benefitting from his own
We review de novo the State’s claim because it presents a question
of statutory construction. People v. Tidwell, 236 Ill. 2d 150, 156
(2010). When construing a statute, our fundamental objective is to
ascertain and give effect to the legislature’s intent, best indicated by
the plain and ordinary meaning of the statutory language. Tidwell, 236
Ill. 2d at 157. A reviewing court may also consider the underlying
purpose of the statute’s enactment, the evils sought to be remedied,
and the consequences of construing the statute in one manner versus
another. People ex rel. Birkett v. Dockery, 235 Ill. 2d 73, 79 (2009).
It is always presumed that the legislature did not intend to cause
absurd, inconvenient, or unjust results. People v. Lewis, 234 Ill. 2d 32,
Section 5–5–3.2(b)(1) of the Code allows for imposition of an
extended-term sentence based on a defendant’s prior conviction when:
“[A] defendant is convicted of any felony, after having been
previously convicted in Illinois or any other jurisdiction of the
same or similar class felony or greater class felony, when such
conviction has occurred within 10 years after the previous
conviction, excluding time spent in custody, and such charges
are separately brought and tried and arise out of different
series of acts[.]” 730 ILCS 5/5–5–3.2(b)(1) (West 1998).
Initially, we note that the legislature’s intent underlying this
provision is settled. As a recidivist statute, the goal of section
5–5–3.2(b)(1) “is to impose harsher sentences on offenders whose
repeated convictions have shown their resistance to correction.
[Citation.]” People v. Robinson, 89 Ill. 2d 469, 476 (1982); see also
People v. Lemons, 191 Ill. 2d 155, 160 (2000) (citing Robinson for
the legislative intent underlying section 5–5–3.2(b)(1)). Consistent
with this purpose, the plain language of the statute authorizes an
extended-term sentence based on a defendant’s prior criminal
conviction within the preceding 10 years, excluding time spent in
custody. Although the language allows exclusion of time spent in
custody, it does not refer to time spent as a result of a defendant’s
We find instructive our decision in People v. Harden, 113 Ill. 2d
14, 21 (1986). In Harden, we construed an earlier version of section
5–5–3.2(b)(1) to determine whether a prior federal conviction could
serve as the basis for imposition of an extended-term sentence. The
version of the statute in Harden did not specifically reference a federal
conviction. Instead, the statutory language allowed imposition of an
extended-term sentence “ ‘[w]hen a defendant is convicted of any
felony, after having been previously convicted in Illinois of the same
or greater class felony, within 10 years, excluding time spent in
custody.’ ” (Emphasis in original.) Harden, 113 Ill. 2d at 21 (quoting
Ill. Rev. Stat. 1981, ch. 38, par. 1005–5–3.2(b)(1)). In other words,
the statute was silent on the issue of whether it applied to a prior
While noting that the statutory language did not reference federal
convictions, we also observed that the statute did not confine its
application only to Illinois convictions. To resolve the issue, we
focused on the legislative objective underlying the extended-term
sentencing statute, namely, to punish repeat criminal offenders more
severely. Harden, 113 Ill. 2d at 21.
In light of the legislature’s intent, we determined that, despite the
absence of language applying the statute to prior federal convictions,
the legislature intended the statute to apply to those convictions. We
explained as follows:
“[The legislature’s] objective cannot be attained if the statute’s
application is to depend upon the sheer chance of an
offender’s having been convicted earlier in a Federal or in a
State court. To construe the statute as providing only for
consideration of convictions in State courts in Illinois would
serve to defeat the statute’s purpose of imposing harsher
sentences on repeating offenders, who as a matter of public
policy should be subject to greater punishment. Too, curiously
and unintentionally, it would treat more harshly offenders who
have prior convictions in State courts, while exempting
Federal offenders.” Harden, 113 Ill. 2d at 21-22.
Therefore, in Harden we held that the language and purpose of
section 5–5–3.2(b)(1) required a conclusion that an offender’s prior
convictions in both federal and state courts may serve as the basis for
an extended-term sentence, despite the absence of statutory language
1After our decision in Harden, the General Assembly amended
5–5–3.2(b)(1) to allow for extended-term sentences, in relevant part, when
the defendant has been “previously convicted in Illinois or any other
jurisdiction.” (Emphasis added.) See 730 ILCS 5/5–5–3.2(b)(1) (West
applying the provision to federal convictions. Harden, 113 Ill. 2d at
Here, as in Harden, we must discern legislative intent on an issue
not specifically referenced by section 5–5–3.2(b)(1). In Harden, the
statutory language clearly applied to prior Illinois convictions but did
not reference federal convictions. Here, the statutory language clearly
excludes time spent in custody from the 10-year limit, but does not
reference exclusion of time spent as a result of a defendant’s wrongful
delay. Ultimately, as in Harden, the legislative intent underlying
section 5–5–3.2(b)(1) must control. Harden, 113 Ill. 2d at 21; see
also, e.g., Tidwell, 236 Ill. 2d at 157 (primary objective of statutory
construction is giving effect to legislative intent).
Mindful that the legislature intended section 5–5–3.2(b)(1) to
impose harsher sentences on repeat offenders who have demonstrated
resistance to correction, we conclude that its intent can be honored
only by construing the statute to exclude, or toll, time lapsed during
a defendant’s wrongful delay of criminal proceedings when that
defendant otherwise qualifies for an extended-term sentence. In our
view, the legislature could not have intended to allow a defendant
subject to an extended-term sentence to avoid increased punishment
by violating bond and remaining a fugitive from justice until the 10-
year statutory limitation expires. Another shortcoming in the
construction advanced by defendant, and adopted by the appellate
court, is that it illogically punishes more severely defendants who
properly participate in criminal proceedings than defendants who flee
the jurisdiction to avoid prosecution.
Moreover, construing section 5–5–3.2(b)(1) to allow tolling based
on a defendant’s wrongful delay of proceedings as a fugitive from
justice is consistent with this court’s recognition that “ ‘[s]tatutes
must be construed in the most beneficial way which their language will
permit so as to prevent hardship or injustice, and to oppose prejudice
to public interests.’ ” In re Lieberman, 201 Ill. 2d 300, 309 (2002)
(quoting Mulligan v. Joliet Regional Port District, 123 Ill. 2d 303,
313 (1988)). Here, as the State argues, construing the statute to toll
the 10-year limit when a defendant violates bond and becomes a
fugitive comports with well-established Illinois public policy
prohibiting a defendant from benefitting from his own wrongdoing and
allowing forfeiture of a defendant’s otherwise valid claims based on
his fugitive status. See People v. Washington, 171 Ill. 2d 475, 479
(1996) (concluding that defendant’s fugitive status warranted striking
all issues raised in defendant’s cross-appeal); Sahlinger v. People, 102
Ill. 241, 247 (1882) (determining that a defendant “can not be
permitted to take advantage of his own wrong, and thus defeat the
ends of justice”); McGowan v. People, 104 Ill. 100, 101-02 (1882)
(approving dismissal of a fugitive defendant’s appeal); People v.
Wicklund, 363 Ill. App. 3d 1045 (2006) (defendant not allowed to
appeal defense counsel’s failure to comply with instructions on
remand because defendant’s willful absence made it impossible for
counsel to comply); People v. Box, 260 Ill. App. 3d 803, 805-06
(1994) (defendant’s fugitive status prevented him from benefitting
from statute allowing him to serve simultaneous misdemeanor and
felony sentences); People v. Emery, 190 Ill. App. 3d 171 (1989)
(defendant’s fugitive status precluded him from obtaining a per diem
credit typically applied to a court-imposed fine).
We are not persuaded by defendant’s contention that the
legislature did not intend to toll the 10-year limit for a defendant’s
wrongful delay when section 5–5–3.2(b)(1) does not expressly allow
for tolling. It is likely, if not probable, that the legislature did not
specifically address the matter when it enacted the statute because it
did not contemplate the exclusion of an extended-term sentence when
a defendant wrongfully delayed criminal proceedings by violating bond
and fleeing the jurisdiction.
We addressed a similar situation in In re Powell, 217 Ill. 2d 123,
137 (2005). In Powell, we construed a statutory filing provision under
the Sexually Violent Persons Act to determine whether a commitment
petition could be timely if filed within 90 days before an inmate’s
anticipated entry into mandatory supervised release (MSR), rather
than 90 days before the inmate’s actual entry into MSR. The
respondent in Powell refused to accept MSR, delaying his actual
entry, and triggering the 90-day limit. The statute at issue, however,
was silent on the issue of whether “entry” meant actual entry into
MSR or anticipated entry in MSR. Instead, it merely referenced an
inmate’s “ ‘entry into mandatory supervised release.’ ” Powell, 217 Ill.
2d at 134-35 (quoting 725 ILCS 207/15(b–5)(1) (West 2000)).
Rejecting the petitioner’s contention that the statutory term
“entry” must be construed narrowly to mean actual entry into MSR,
we focused on the legislature’s intent to keep the public safe from
predatory sexual offenders, noting that a strict construction would run
counter to that intent. Furthermore, we explained that the statute did
not differentiate between actual entry and anticipated entry because
the legislature did not contemplate an inmate refusing MSR to trigger
the 90-day limit. Powell, 217 Ill. 2d at 137-38.
Here, as in Powell, it would be reasonable to assume the
legislature did not address the situation because it did not envision a
defendant avoiding an extended-term sentence by wrongfully delaying
criminal proceedings. This does not necessarily mean, however, that
the legislature’s silence must be construed to permit a defendant to
escape an extended-term sentence he otherwise qualifies for by
violating bail and becoming a fugitive until the 10-year limit has
Instead, as in Powell, we must focus on the legislative intent
underlying the statute. As we have already noted, it is indisputable that
the legislature intended section 5–5–3.2(b)(1) to impose harsher
sentences on defendants who receive another criminal conviction
within 10 years of a prior conviction. Considering this clear intent, it
would be absurd to construe the statute in a manner that allows a
defendant to avoid an extended-term sentence when he violates bond
and becomes a fugitive from justice. See Lewis, 234 Ill. 2d at 44
(reviewing court may presume that the legislature did not intend to
cause absurd results).
We also disagree with defendant’s contention that the rule of
lenity, requiring penal statutes to be construed strictly in favor of the
accused, warrants a construction of the statute to allow a defendant
to avoid an extended-term sentence by wrongfully delaying the
proceedings. The rule of lenity does not require this court to construe
a statute rigidly and circumvent the legislature’s intent. Powell, 217
Ill. 2d at 142. Indeed, the primacy of legislative intent is paramount,
and all other rules of statutory construction are subordinate to it.
Lieberman, 201 Ill. 2d at 312. The strict construction advanced by
defendant would contravene the legislature’s intention to impose
harsher penalties on repeat offenders. We cannot countenance
In accordance with the legislature’s clear intent to impose harsher
penalties on repeat offenders under section 5–5–3.2(b)(1), the statute
must be construed to toll the applicable 10-year limit for prior
convictions when the defendant wrongfully delays criminal
proceedings by violating bond and becoming a fugitive, but otherwise
qualifies for an extended-term sentence. Thus, any time that lapses as
a result of the defendant’s fugitive status should be excluded from the
calculation of the 10-year limit. Accordingly, we reverse the part of
the appellate court’s judgment construing the statute and vacating
defendant’s extended-term sentences.
Appellate court judgment reversed in part.
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